Ahlers v. Rabinowitz, No. 10-1193 (2d Cir. 2012)

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Justia Opinion Summary

Plaintiff appealed from a judgment from the district court dismissing his 42 U.S.C. 1983 claims. Plaintiff was a convicted sex-offender who had been civilly committed post-release from prison and he alleged that when he was confined in the Manhattan Psychiatric Center, staff seized and withheld his personal DVDs and CDs and his incoming non-legal mail in violation of his due process rights. The court held that the district court did not err in concluding that the complaint failed to state any claim for which relief could be granted. The court also undertook to clarify some applicable principles and affirmed the judgment of the district court because, in any event, it was objectively reasonable for the Center staff to believe that their acts did not violate plaintiff's rights. Accordingly, they were entitled to qualified immunity.

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10-1193-CV Ahlers v. Rabinowitz 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: December 7, 2011 Decided: April 6, 2012) Docket No. 10-1193 - - - - - - - - - - - - - - - - - - - -x KARL AHLERS, Plaintiff-Appellant, - v.STEVEN RABINOWITZ, Director, Manhattan Psychiatric Center, DORA DEATRAS, Ward D-9-B Treatment Team Leader, Manhattan Psychiatric Center, IMOGINE THOMPSON, Ward D-9-B, Staff Member, Manhattan Psychiatric Center, FELICITY MOE, Ward D9-B, Staff Member, Manhattan Psychiatric Center, Defendants-Appelles. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges. Plaintiff appeals from a judgment entered in the 34 Southern District of New York (Crotty, J.) dismissing his 42 35 U.S.C. § 1983 claims. 36 analysis; but we undertake to clarify some applicable 37 principles and affirm on the ground of qualified immunity. 38 We agree with the district court s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 THOMAS H. DUPREE, JR. (Frederick Liu, Erik R. Zimmerman, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellant. DAVID LAWRENCE III, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Appellees. DENNIS JACOBS, Chief Judge: 18 19 Karl Ahlers appeals from a judgment entered in the 20 United States District Court for the Southern District of 21 New York (Crotty, J.) dismissing his claims under 42 U.S.C. 22 § 1983. 23 civilly committed post-release from prison. 24 when he was confined in the Manhattan Psychiatric Center 25 (the Center ), staff seized and withheld his personal DVDs 26 and CDs and his incoming non-legal mail in violation of the 27 First and Fourth Amendments and his procedural due process 28 rights. 29 the complaint fails to state any claim for which relief can 30 be granted. Ahlers is a convicted sex-offender who has been He alleges that The district court did not err in concluding that See Fed. R. Civ. P. 12(b)(6). 2 This opinion 1 undertakes to clarify some applicable principles. We affirm 2 the judgment of the district court because, in any event, it 3 was objectively reasonable for the Center staff to believe 4 that their acts did not violate Ahlers s rights. 5 therefore entitled to qualified immunity. They are 6 7 8 BACKGROUND In August 1982, Ahlers was convicted of sex offenses 9 involving children aged seven to sixteen: specifically, two 10 counts of sodomy in the first degree, one count of sodomy in 11 the second degree, one count of sodomy in the third degree, 12 three counts of sexual abuse in the first degree, and two 13 counts of endangering the welfare of a child. 14 Ahlers, 470 N.Y.S.2d 483, 483 (3d Dep t 1983). 15 release from prison in 2005, Ahlers was involuntarily placed 16 in civil custody, first in the Kirby Forensic Center and 17 then, in August 2007, in the Sex Offender Treatment Program 18 at the Center. 19 complaint against the Center s Director, Steven Rabinowitz, 20 and three Center employees--Dora Deatras, Imogine Thompson, 21 and Felicity Moe --(collectively, the Defendants ) alleging 22 that they withheld from him certain CDs and DVDs, and his People v. After In December 2008, Ahlers filed a pro se 3 1 mail, in violation of the Constitution and federal law. 2 allegations are set out below. 3 CDs and DVDs. The Ahlers alleges that because of his 4 hearing loss, he was granted permission to have a personal 5 DVD player, DVDs, and CDs, so that he could listen through 6 headphones. 7 Over time, with the Center s permission, Ahlers acquired a 8 collection of 163 DVDs and 86 CDs (collectively, the 9 discs ). Other patients received similar accommodations. According to Ahlers, the DVDs contain content 10 similar to what is broadcast on the Center s televisions, 11 and the CDs contain classical music. 12 On April 21, 2008, staff entered Ahlers s room without 13 warning, seized his DVD player and all his discs, and 14 informed him that the discs would be reviewed and returned. 15 On May 6, Ahlers met with his parole officer and members of 16 his treatment team--defendants Deatras, Thompson, and Moe-- 17 and he was assured that they would review his DVDs. 18 19, at a meeting of all the patients in Ahlers s ward, 19 Deatras announced that the staff was screening for sexually 20 explicit material. 21 22 On May On May 28, Ahlers met to discuss the seizure with the Center s Deputy Director, Charles Herrmann, who said he 4 1 would look into the matter, but did not get back to Ahlers. 2 Ahlers followed up with a letter, but got no reply. 3 On May 30, Deatras returned 16 DVDs and the DVD player 4 to Ahlers and presented him with a receipt, which indicated 5 that 14 DVDs had been permanently confiscated for containing 6 sexually explicit material and that 131 had yet to be 7 reviewed.1 8 On June 18, Ahlers discussed the seizure with Don 9 Graham, a lawyer in Mental Health Services, who later met 10 with the ward psychologist and Deatras. 11 Ahlers asked when he would get back the remaining discs, and 12 was told by Deatras that just one person was available to 13 screen DVDs, but that she would talk to that individual. 14 Later that day, Deatras returned 15 DVDs, and told Ahlers 15 that the remaining DVDs had not yet been reviewed. 16 Two days later, Toward the end of June, Deatras gave Ahlers a list of 17 the 14 permanently confiscated DVDs and a memo from 18 defendant Steven Rabinowitz, Director of the Center, 19 responding to a letter Ahlers had written. 20 advised that it was clinically inappropriate for Ahlers to 1 Rabinowitz This adds up to 161 DVDs. Ahlers alleges that 163 were seized. The complaint is confusing in this respect, and others. 5 1 have sexually explicit material and sexual material 2 involving children, and that the permanently confiscated 3 DVDs had been deemed clinically inappropriate. 4 5 6 On July 28, the Center returned ten more DVDs to Ahlers. On August 8, twenty more were returned. Mail. On March 20, 2008, a United States Government 7 Printing Office ( GPO ) catalog arrived in the mail for 8 Ahlers. Thompson withheld it to submit it to Deatras for 9 review. On April 28, Ahlers asked Moe about it and was told 10 a decision had not yet been made. 11 returned the catalog; with Ahlers s permission, the cover 12 was removed. 13 On May 3, Deatras On March 21, 2008, Thompson intercepted a piece of mail 14 and turned it over to Deatras, who told Ahlers that it had 15 been given to his social worker. 16 item. 17 Ahlers never received the On April 28, Moe withheld an issue of Smithsonian 18 magazine and a mail-order catalog. 19 inquiry about the magazine in early May, Deatras told Ahlers 20 she had not yet had time to review it. 21 returned the magazine. 22 6 In response to Ahlers s On May 12, Moe 1 Also on April 28, another patient informed Ahlers that 2 he had seen a package addressed to Ahlers. 3 pick it up, but the package was not available. 4 day, Ahlers received the package and was told by Deatras 5 that she was holding pending review five catalogs and one 6 magazine. 7 Ahlers went to The next On May 5, defendant Thompson withheld a Heartland mail- 8 order catalog and a catalog of DVDs. The Heartland catalog 9 had a photograph of a replica revolver, and the DVD catalog 10 had a photograph of Civil War soldiers with flintlock 11 rifles. 12 catalog, but withheld the Heartland catalog for review by a 13 parole officer. When Ahlers objected, Thompson gave him the DVD 14 On June 24, Center staff withheld several brochures 15 from the Chamber of Commerce of Klamath Falls, Oregon, which 16 contained pictures of children in bathing suits. 17 brochures were not returned. 18 The On July 11, an attendant told Ahlers that some of his 19 mail was being withheld for review; Ahlers never got it. 20 July 21, two books were held for review. 21 Thompson withheld brochures from the Medford, Oregon Chamber 22 of Commerce. Ahlers never received them. 7 On On July 22, 1 Dismissal of the Complaint. The district court 2 construed the complaint to raise allegations under the 3 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112- 4 12117 ( ADA ), and 42 U.S.C. §§ 1983, 1985, and 1986 for 5 violations of the First and Fourth Amendments. 6 concluded that Ahlers failed to state an ADA claim because 7 he had not alleged an impairment that substantially limits 8 one or more major life activities, 42 U.S.C. § 12102(1)(A); 9 that he failed to state claims under § 1985 and § 1986 The court 10 because he had not alleged that he was deprived of rights on 11 account of his membership in a protected class; that he 12 failed to state a Fourth Amendment claim because the 13 Defendants seized [his] property to promote the safety and 14 welfare of the [Center s] staff and patients ; and that he 15 failed to state a First Amendment claim because the 16 Defendants had a legitimate penological interest in 17 monitoring, screening, and withholding [his] property. 18 Ahlers v. Rabinowitz, No. 08 Civ. 11091 (PAC)(KNF), 2010 WL 19 808773 (S.D.N.Y. Mar. 9, 2010). 20 21 Ahlers appeals the dismissal of his § 1983 claims for First and Fourth Amendment violations and argues that the 22 8 1 district court failed to consider his procedural due process 2 claim.2 3 4 DISCUSSION We review de novo a district court s dismissal of a 5 complaint pursuant to Rule 12(b)(6), construing the 6 complaint liberally, accepting all factual allegations in 7 the complaint as true, and drawing all reasonable inferences 8 in the plaintiff s favor. 9 282 F.3d 147, 152 (2d Cir. 2002). 10 Chambers v. Time Warner, Inc., To survive a motion to dismiss, a complaint must 11 contain sufficient factual matter, accepted as true, to 12 state a claim to relief that is plausible on its 13 face. . . . 14 probability requirement, but it asks for more than a sheer 15 possibility that a defendant has acted unlawfully. 16 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 17 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 18 556, 570 (2007)). The plausibility standard is not akin to a 2 Ahlers does not appeal the district court s dismissal of his ADA, § 1985, and § 1986 claims. Issues related to Ahlers s civil commitment were litigated in several separate actions, and we do not revisit them here. See, e.g., Ahlers v. Spitzer, No. 09 Civ. 10006(SAS), 2010 WL 2545962 (S.D.N.Y. June 24, 2010), aff d, 432 F. App x 42 (2d Cir. Sept. 27, 2011); Ahlers v. Boruch, No. 04 CV 1747 (JG), 2007 WL 2042794 (E.D.N.Y. July 16, 2007). 9 1 A document filed pro se is to be liberally 2 construed, and a pro se complaint, however inartfully 3 pleaded, must be held to less stringent standards than 4 formal pleadings drafted by lawyers. 5 551 U.S. 89, 94 (2007) (citation omitted) (quoting Estelle 6 v. Gamble, 429 U.S. 97, 106 (1976)). 7 so when the pro se plaintiff alleges that h[is] civil rights 8 have been violated. 9 537 F.3d 185, 191 (2d Cir. 2008).3 10 Erickson v. Pardus, This is particularly Sealed Plaintiff v. Sealed Defendant, In order to state a cause of action under 42 U.S.C. 11 § 1983, a plaintiff must allege that some person acting 12 under color of state law deprived him of a federal right. 13 Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). 14 sum, Ahlers has not pleaded sufficient facts to support a 15 claim that the seizure and withholding of his CDs, DVDs and 16 mail deprived him of First and Fourth Amendment rights, as 17 incorporated through the Fourteenth Amendment, or of his 18 right under the Fourteenth Amendment to procedural due 19 process. 3 Ahlers litigated this case pro se. When Ahlers appealed the judgment of the district court, he petitioned this Court to appoint counsel, which we did on October 13, 2010. We thank appointed counsel for their dedicated and skillful advocacy in this matter. 10 In 1 2 I To determine the substantive rights of a person 3 involuntarily committed to a state institution, the 4 interests of the individual are balanced against the 5 interests of the state. 6 320 (1982); see Buthy v. Comm r of the Office of Mental 7 Health, 818 F.2d 1046, 1050 (2d Cir. 1987) (balancing to 8 determine the due process rights of persons committed after 9 acquittal by reason of insanity); United States v. Cohen, 10 796 F.2d 20, 23-24 (2d Cir. 1986) (balancing to determine 11 the Fourth Amendment rights of pretrial detainees). 12 not previously undertaken to perform that analysis with 13 regard to the Fourth Amendment right of civilly committed 14 persons to be free from unreasonable searches and seizures. 15 In a prison or institution housing pretrial detainees, Youngberg v. Romeo, 457 U.S. 307, We have 16 the essential state interests include maintaining 17 institutional security and preserving internal order. 18 v. Wolfish, 441 U.S. 520, 546 (1979). 19 free to take appropriate action to ensure the safety of 20 inmates and . . . personnel and to prevent escape or 21 unauthorized entry. Id. at 547. 22 11 Bell [O]fficials must be 1 On the other hand, [p]ersons who have been 2 involuntarily committed are entitled to more considerate 3 treatment and conditions of confinement than criminals whose 4 conditions of confinement are designed to punish. 5 Youngberg, 457 U.S. at 321-22. 6 interest in maintaining order and security is not punitive 7 in purpose or character, and remains valid in institutions 8 of civil commitment. 9 211, 232 (N.D.N.Y. 2002) (noting the societal interest in 10 protecting the health, safety, and welfare of the patients 11 and staff in a state psychiatric center); see also Bell, 12 441 U.S. at 540 ( The Government . . . has legitimate 13 interests that stem from its need to manage the facility in 14 which the individual is detained [pretrial]. ). 15 However, the state s See Aiken v. Nixon, 236 F. Supp. 2d The state also has an interest in treating the civilly 16 committed individual. [T]he dual goals of involuntary 17 commitment [are] to provide care and treatment to those 18 unable to care for themselves and to protect the individual 19 and society from those who pose a danger to themselves and 20 others because of mental illness. 21 F.2d 29, 34 (2d Cir. 1992); see also McKune v. Lile, 536 22 U.S. 24, 33 (2002) ( States . . . have a vital interest in 23 rehabilitating convicted sex offenders. ). 12 Goetz v. Crosson, 967 1 The reasonableness of the seizure in this case depends 2 on a balance of interests: the state s interests in order, 3 security, and treatment, and Ahlers s property interest in 4 his discs.4 5 made by the Defendants are entitled to a presumption of 6 correctness. 7 457 U.S. at 324); see also Youngberg, 457 U.S. at 323 n.30, 8 324-25 ( The administrators, and particularly professional 9 personnel [i.e., persons competent by education, training or 10 experience], should not be required to make each decision in 11 the shadow of an action for damages. ). 12 In striking the appropriate balance, decisions Buthy, 818 F.2d at 1050 (quoting Youngberg, Ahlers does not claim entitlement to possess sexually 13 explicit media; his allegation is that none of the discs is 14 sexually explicit. 15 accept his characterizations or assurances. 16 therefore not unreasonable to seize the discs to look for 17 prohibited material. 18 Ahlers to acquire the discs did not diminish its interest in 19 ensuring that they were appropriate. But the Defendants are not bound to It was The fact that the Center allowed 20 4 Ahlers does not challenge the search of his room-only the seizure of his property--so we need not determine whether he had a privacy interest. Cf. Hudson v. Palmer, 468 U.S. 517, 522-30 (1984) (holding prisoners do not have a privacy interest in their cells). 13 1 Ahlers challenges the motivations of the Defendants in 2 seizing his property and the length of the seizure. But 3 the subjective motivations of the individual officers . . . 4 has no bearing on whether a particular seizure is 5 unreasonable under the Fourth Amendment, Graham v. 6 Connor, 490 U.S. 386, 397 (1989), and where, as here, an 7 initial seizure of property was reasonable, defendants 8 failure to return the items does not, by itself, state a 9 separate Fourth Amendment claim of unreasonable seizure, 10 Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 11 F.3d 177, 187 (2d Cir. 2004). 12 Constitution affords . . . any right with respect to a 13 government agency s retention of lawfully seized property, 14 it would appear to be procedural due process. To the extent the Id. 15 16 17 II In alleging a violation of his procedural due process 18 rights, a plaintiff must plead facts sufficient to give rise 19 to a claim that he was deprived of his property without 20 constitutionally adequate pre- or post-deprivation 21 process. 22 F.3d 156, 163 (2d Cir. 2001). N.Y. State Nat l Org. for Women v. Pataki, 261 A court must balance three 14 1 factors in determining what process is due: 2 (1) the private interest that will be affected by the 3 official action ; (2) the risk of an erroneous 4 deprivation of such interest through the procedures 5 used, and the probable value, if any, of additional or 6 substitute procedural safeguards ; and (3) the 7 Government s interest, including the function involved 8 and the fiscal and administrative burdens that the 9 additional or substitute procedural requirement would 10 entail. 11 McMenemy v. City of Rochester, 241 F.3d 279, 288 (2d Cir. 12 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 13 (1976)). 14 Ahlers s allegations are insufficient to support a 15 claim that the Center s pre-deprivation procedures were 16 constitutionally inadequate. 17 Ahlers alleges that his discs were seized without prior 18 notice. Pretrial detainees are not entitled to notice 19 before a search of their cells. 20 468 U.S. 576, 590, 591 n.12 (1984). 21 may be greater for civilly committed persons, see Youngberg, 22 457 U.S. at 321-22; but the state s interest in seizing 15 See Block v. Rutherford, The private interest 1 contraband is no less, and the self-defeating effect of 2 advance notice would be the same. 3 . . . flexibility and prevents inmates from anticipating, 4 and thereby thwarting, a search for contraband. 5 468 U.S. at 529 (quoting Marrero v. Commonwealth, 284 S.E.2d 6 809, 811 (Va. 1981)). A random search allows Hudson, 7 Ahlers complains that at the time of the seizure, the 8 Center staff did not tell him what they were screening for 9 and gave him no receipt. The state s interest in quick and 10 efficient searches militates against requiring that a 11 detailed explanation or a written receipt be given at the 12 time of seizure. 13 searches of pretrial detainees cells are constitutional 14 even when the detainees are absent during the searches). 15 After the seizure, Ahlers was given a receipt, and informed 16 of the reason for the screening. 17 staff used different terms to describe the prohibitions-- 18 explicit sexuality, pornography, nudity, clinically 19 inappropriate material--but each term had similar import. 20 Cf. Block, 468 U.S. at 589-91 (holding Ahlers alleges that the Ahlers alleges that the seizure was unguided by any 21 written facility policy or written authorization. 22 any context, [a] requirement that . . . random searches be 16 In 1 conducted pursuant to an established plan would seriously 2 undermine the effectiveness of this [measure]. Hudson, 468 3 U.S. at 529. 4 professional may have to make decisions with respect to a 5 number of residents with widely varying needs and problems 6 in the course of a normal day, Youngberg, 457 U.S. at 324, 7 it is particularly hard to catalog contraband. 8 differ; treatments are individual and subject to change; and 9 deviant interests will render otherwise-benign images In the therapeutic context, where [a] single Disorders 10 clinically inappropriate. 11 in the staff s ability to effectively perform their jobs 12 outweighs the value of any additional protection to Ahlers s 13 property interests that would result from a written policy 14 or formula. 15 Accordingly, the state s interest Ahlers protests that his property was held for an 16 unreasonably long period. But vetting the CDs and DVDs 17 presumably entails real-time review, conducted by staff with 18 other responsibilities as well. 19 discs were seized from Ahlers alone, that discs were seized 20 from other patients as well, and that the process is not 21 necessarily of the first priority within the institution, 22 the months taken to complete the work does not suggest that 17 Considering that nearly 250 1 the procedures or policies were constitutionally 2 inadequate.5 3 Ahlers alleges that the 14 DVDs that were permanently 4 confiscated are not sexually explicit. 5 consider that there is a broader category of material that 6 is clinically inappropriate without presenting itself as 7 sexual. 8 Defendants decision is insufficient to state a claim that 9 the state s decision-making procedures were inadequate. 10 But the Center may In any event, Ahlers s disagreement with the Ahlers recites a list of encounters with staff, 11 evidently to show that he was afforded inadequate post- 12 deprivation procedures. 13 after the seizure, he was called into a meeting with his 14 parole officer and Deatras, Thompson, and Moe; and that 15 approximately five weeks after the seizure, he was called 16 into a meeting with the Center s Deputy Director. 17 complaint does not make clear whether the meetings were 18 opportunities to challenge the deprivation, or whether they 19 were therapeutic, or both. Thus he alleges that two weeks The Similarly, the complaint does 5 It is unclear how long Ahlers was deprived of the discs. The complaint indicates that of the 163 DVDs and 86 CDs that were seized, 14 DVDs were permanently confiscated, and 61 DVDs were returned. The complaint does not indicate what happened to the CDs or to the other 88 DVDs. 18 1 not make clear whether Ahlers s meeting with a lawyer from 2 Mental Health Services and the letter Ahlers sent to 3 Rabinowitz were part of a formal or informal appeals 4 procedure, or afforded that opportunity in effect. 5 Ahlers has not alleged whether formal post-deprivation 6 procedures were available to him, he has not stated a claim 7 that they were insufficient. 8 F.2d 45, 47 (2d Cir. 1988) ( Absent a showing of inadequate 9 state procedures [the plaintiff s] claim must fail. ).6 Because See Marino v. Ameruso, 837 10 11 12 III This Circuit has not articulated the standard by which 13 to analyze censorship of mail in the civil commitment 14 context. 15 only if they further[] one or more of the substantial 16 governmental interests of security, order, and 17 rehabilitation . . .[and] must be no greater than is 18 necessary or essential to the protection of the particular 19 governmental interest involved. 20 346, 351 (2d Cir. 2003) (alterations in original) (quoting Restrictions on prisoners mail are justified 6 Davis v. Goord, 320 F.3d The government has not argued for the applicability of Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877 (2d Cir. 1996), so we need not address it. 19 1 Washington, 782 F.2d at 1139). 2 an isolated incident of mail tampering is usually 3 insufficient to establish a constitutional violation. 4 Rather, the inmate must show that prison officials 5 regularly and unjustifiably interfered with the incoming 6 legal mail. 7 Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y. 8 Mar. 29, 2001)). 9 formula is easily adapted. With regard to legal mail, Id. (citations omitted) (quoting Cancel v. In the context of civil commitment, this A patient must show regular and 10 unjustifiable interference with incoming legal mail; the 11 actions of facility staff in restricting civilly committed 12 individuals access to legal mail are justified if they 13 advance or protect the state s interest in security, order, 14 or treatment and the restrictions imposed are no greater 15 than necessary to advance the governmental interest 16 involved. 17 Interference with non-legal mail, as Ahlers claims, is 18 more readily justifiable than interference with so-called 19 legal mail. 20 interests implicated in restrictions on prison mail, courts 21 have consistently afforded greater protection to legal mail 22 than to non-legal mail . . . . ). See id. at 351 ( In balancing the competing 20 We need not articulate 1 the correct standard here, however, because Ahlers s 2 complaint cannot support a claim that any alleged 3 interference with his non-legal mail was regular[] or 4 unjustifiabl[e]. See id. 5 Broadly construed, the complaint alleges eleven 6 instances of interference, between March and July 2008.7 7 Three times, the withheld items were returned: the GPO 8 catalog was returned within six weeks; the Smithsonian 9 magazine (after Ahlers consented to the removal of its 10 cover) was returned after two weeks; and the package 11 withheld on April 28 was returned the next day. 12 brief delays do not amount to a First Amendment violation. 13 See Rowe v. Shake, 196 F.3d 778, 780, 782 (7th Cir. 1999) 14 (holding an allegation that, over the course of three 15 months, eight items took more than fourteen days to reach a 16 prisoner was insufficient); Cancel v. Goord, No. 00 CIV. 17 2042 (LMM), 2002 WL 171698, at *3 (S.D.N.Y. Feb. 4, 2002) 18 (holding an allegation of seven delays, ranging from two to 19 six weeks, over the course of a year was insufficient). Several 20 7 This total does not include Ahlers s allegation that on May 5, Moe chose not to withhold a DVD catalog after Ahlers objected. 21 1 Ahlers alleges three instances involving mail that was 2 never returned, and an additional five instances in which he 3 leaves unspecified whether the seized mail was ever returned 4 to him. 5 because they contained images of children in bathing suits, 6 which staff deemed clinically inappropriate. 7 state s interest in treating Ahlers s sexual deviance, 8 Center staff had a justification for an embargo on these 9 images. The brochures from Klamath Falls were withheld Because of the See Yeldon v. Hogan, No. 9:08-CV-769 (NAM/RFT), 10 2010 WL 983819, at *9 (N.D.N.Y. Mar. 15, 2010) 11 ( Restrictions on incoming mail containing pictures of 12 minors [in an institution of civil commitment] where many 13 residents have committed sexual offenses against children is 14 a policy that is rationally related to legitimate government 15 interests. ). 16 The reasons for some of the other withholdings are 17 unclear. 18 publication withheld on March 21, 2008, or the brochures 19 from Medford, or the material withheld on April 28, April 20 29, July 11 and July 21. 21 22 The complaint says very little about the In any event, eleven instances over four months does not in itself support an inference of regular interference. 22 1 And the allegation that mail was withheld is insufficient to 2 support a claim that it was withheld unjustifiably.8 3 The foregoing analysis is directed to Ahlers s 4 complaint that his mail was intercepted and withheld 5 arbitrarily, and that the Defendants actions were not 6 governed by any rule or policy. 7 on the assumption that no rule or policy exists. 8 doing, we recognize that the test for ascertaining the 9 constitutional validity of such a rule is established in 8 We therefore must proceed In so The complaint also fails to state Fourth Amendment and procedural due process claims with regard to the withholding of mail. Ahlers s property interest in mailorder catalogs and similar materials borders on de minimis. See Buthy, 818 F.2d at 1050; see also Nickens v. White, 536 F.2d 802, 803 (8th Cir. 1976) (per curiam) (holding a prisoner s interest in a catalog was de minimis). In any event, the state s interest in preventing Ahlers from obtaining clinically inappropriate images is strong, and Ahlers s interest in incoming commercial mail is relatively weak. The Defendants seizure of such mail for screening was not unreasonable. See United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998) ( [T]he interception of a defendant s prison correspondence does not violate that individual s First or Fourth Amendment rights if prison officials had good or reasonable cause to inspect the mail. ). Ahlers has not sufficiently alleged that the Center s procedures were constitutionally inadequate because Ahlers has not alleged what (if any) procedures were available. Cf. Procunier v. Martinez, 416 U.S. 396, 417 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 417 (1989) ( [T]he decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards. ). 23 1 2 Turner v. Safley, 482 U.S. 78 (1987). As we have explained: In Turner, the Supreme Court instructed that 3 courts reviewing the validity of prison regulations 4 should apply several factors. 5 valid, rational connection between the prison 6 regulation and the legitimate governmental interest put 7 forward to justify it. 8 whether there are alternative means of exercising the 9 right that remain open to prison inmates. First, there must be a Second, courts should assess Third, 10 courts should consider the impact accommodation of the 11 asserted constitutional right will have on guards and 12 other inmates, and on the allocation of prison 13 resources generally. 14 the challenged regulation in relation to proposed 15 alternatives. Finally, courts should consider 16 Johnson v. Goord, 445 F.3d 532, 535 (2d Cir. 2006) 17 (citations omitted) (internal quotation marks omitted) 18 (quoting Turner, 482 U.S. at 89-90). 19 considerations amount to an overall test of reasonableness 20 that differs from the test applied here more in its 21 procedure than in its substantive outcome. 22 U.S. at 89 ( [W]hen a prison regulation impinges on inmates 24 These four See Turner, 482 1 constitutional rights, the regulation is valid if it is 2 reasonably related to legitimate penological 3 interests. . . . 4 determining the reasonableness of the regulation at 5 issue. ). [S]everal factors are relevant in 6 7 8 9 IV We have for the first time undertaken a Fourth Amendment balancing analysis with regard to the right of a 10 civilly committed person to be free from unreasonable 11 seizures. 12 remand for a pro se complainant to replead. 13 USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) 14 ( [T]he court should not dismiss without granting leave to 15 amend at least once when a liberal reading of the complaint 16 gives any indication that a valid claim might be stated. ) 17 (internal quotation marks omitted). 18 satisfied that, in any event, it was objectively reasonable 19 for [the Defendants] to believe their acts did not violate 20 Ahlers s Fourth Amendment rights, or his First Amendment or 21 procedural due process rights. 22 845, 857 (2d Cir. 1996). In other circumstances, that might justify a 25 See Gomez v. However, we are See Weyant v. Okst, 101 F.3d 1 The qualified immunity doctrine protects government 2 officials from suits seeking to impose personal liability 3 for money damages based on unsettled rights or on conduct 4 that was not objectively reasonable . . . . Connell v. 5 Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). The complaint 6 requests relief of one thousand dollars ($1,000.00) per day 7 punitive damages from the date Ahlers s property was seized 8 until the date it is returned to him intact. 9 for money damages might also be read as a prayer for This demand 10 injunctive relief. However, Ahlers, though pro se, knew how 11 to plead a claim for injunctive relief, and did, albeit as 12 to a matter now moot.9 13 filed by counsel, does not argue for an injunction. 14 Moreover, although the parties briefs argue back and forth 15 on the issue of qualified immunity, Ahlers does not contend 16 that his prayer for relief was anything but a claim for 17 money damages. 18 briefs are considered waived and normally will not be More importantly, Ahlers s brief, Issues not sufficiently argued in the 9 The complaint requests that the court issue an order, directing that defendants . . . be stayed and prohibited from taking any action including . . . harassment and bullying, relating to defendant[s ] actions complained of in the instant proceeding. Ahlers has since relinquished this claim as moot because in 2009, he was transferred from the Center to the Central New York Psychiatric Center. 26 1 addressed on appeal. Norton v. Sam s Club, 145 F.3d 114, 2 117 (2d Cir. 1998). 3 as a claim for money damages and conclude that the 4 Defendants are entitled to qualified immunity. Accordingly, we construe the complaint 5 6 7 8 CONCLUSION For the foregoing reasons, we affirm the judgment of dismissal. 27